Between the Scylla and Charybdis of Prosecution and Reconciliation: The Khmer Rouge Trials and the Promise of International Criminal Justice

Abstract

The article suggests a principled methodology for the exercise and adjudication of prosecutorial discretion when confronted with the dilemma of whether or not to prosecute individuals alleged to have committed international crimes, on the ground that this will adversely affect national reconciliation. It makes a novel contribution to existing literature in two ways. First, it examines this debate through a recent dispute between the Co-Prosecutors of the Khmer Rouge Tribunal which has certain extraordinary features. It marks the first ever instance of international prosecutors simultaneously exercising their discretion to reach divergent decisions on whom to prosecute. It places the Pre-Trial Chamber in the novel position of an international judicial organ having to decide between these competing claims. The tribunal is also unique in having equal national and international counterparts at all levels of decision making. The dispute therefore implicates issues that challenge the seeming coherence of international criminal justice and its divergent constituencies. Second, the article draws upon Robert Alexy’s influential theory on constitutional rights to propose an impartial way for resolving disputes between the demands of peace and justice. It advocates a proportionality analysis that views both prevention of impunity through criminal trials, and the pursuit of peace and national reconciliation, as principles that are in the nature of optimisation requirements. It demonstrates how this balancing exercise would be operationalised in the disagreement before the Khmer Rouge Tribunal as well as how this would be an objective method for the resolution of similar disputes before other international courts.

Keywords: Khmer Rouge, ECCC, prosecutorial discretion, ICC, interests of justice, Robert Alexy, proportionality, balancing, national reconciliation, prosecution